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HomeMy WebLinkAboutIII (B) Approval and Authorization for the Mayor and City Clerk to Execute Contract between the Police Department and ImageWare Systems, Inc. Agenda 12-04-2001 "CENTER OF GOOD LIVING-PRIDE OF!VEST ORANGE" Item III B S.SCOTT VANDERGRIFT Ocoe os` CITY OF COMMISSIONERS O C O E E DANNY HOWELL SCOTT ANDERSON 150 N.LAKESHORE DRIVE RUSTY JOHNSON OCOEE,FLORIDA 34761-2258 NANCY J.PARKER (407)905-3100 ACTING CITY MANAGER \4`1G JIM GLEASON Of G000 STAFF REPORT TO: The Honorable Mayor and City Commissioners FROM: Brian Ross, Information Systems Manager DATE: 11/28/01 RE: IWS Service contract ISSUE Should the Ocoee Police Department enter into a service agreement with Image Ware Systems, Inc (IWS) for maintenance of the computer used for mug shots and warrants from the Orange County Sheriff's Office (OCSO) computer network? BACKGROUND/DISCUSSION Ocoee Police Department has purchased a computer system and color laser printer from IWS per Orange County Sheriff's Office specifications. This computer provides software and connections to access the OCSO databases for mug shots and warrants. This is the same software, computer system, and vendor used by OCSO for such access. RECOMMENDATION Approval and Authorization for Mayor and City Clerk to Execute the Ocoee Police Department Software Maintenance Agreements upon approval as to form and legality by the City Attorney. POWT \. ImageWare Software TO: Brian Ross FROM: Shasta Wilson COMPANY: Ocoee Police Department FAX NUMBER: 407-656-7835 PHONE NUMBER: 407-905-3100 ext. 1522 NUMBER OF PAGES: 15 DATE: November 28, 2001 SENDER'S PHONE NUMBER AND EXTENSION: (858) 673-8600 Extension: 100 shasta(lawsinc.com 10883 Thornmint Road, San Diego, CA 92127 858-673-8600 ... (858) 673-1770 (fax) T00'd S28L9S9LB7:01 :WOed 90:01 1002-82-n0N RENEWAL SOFTWARE AND HARDWARE MAINTENANCE ANCE AGREEMENT (the "Agreement") BETWEEN IMAGEWARE SYSTEMS,INC ("IWS") AND City of Ococce ("AGENCY") 1 TERM AND PAYMENT 1.1 Initial Term. The initial term of this Agreement shall be for one year and shall commence on April 1, 2001 and end on March 31, 2002. 1.2 Renewal Terms. Subject to the receipt by IWS of payment for such services, this Agreement shall he renewed annually thereafter, automatically, commencing on the same month and day noted first directly above and ending on the same month and day noted second directly above, for three (3) additional one-year terms, unless either party gives prior written notice of its intention not to renew this Agreement. 1.3 Annual Fee. For the services specified herein, except for those services designated as "Extra Services" pursuant to Section 2.6 hereof, AGENCY agrees to pay an annual maintenance fee ( $2222.15") as specified in Exhibit A. Annual maintenance fees will be due and payable on first day of coverage and will not exceep 2-3 percent annually.. Any changes to Exhibit A will be provided to AGENCY before the start of that year's commencement date. For additional hardware and/or software purchased from IWS during the term of this Agreement and added to the System (as defined below), AGENCY agrees to pay maintenance fees for the added hardware and/or software on a pro rated basis commencing on the date of the installation of such added items through the end of that annual period, and then annually, thereafter, for so long as this Agreement is in place. 2 MAINTENANCE SERVICE TO BE PROVIDED. 2.1 General, IWS shall provide to AGENCY maintenance service with respect to the Crime Capture System°(the"System",being the software purchased from IWS and the related hardware,whether purchased from IWS or supplied by AGENCY). The obligation of IWS to provide such maintenance service shall not extend beyond the items of software and hardware(the IWS supported items or"Supported Items" as are identified in Exhibit A)that AGENCY has purchased directly from IWS. Such maintenance service shall consist of(i)Preventive Maintenance as is described in Section 2.4, (ii) Remedial Maintenance as is Page 1 vcr 04-03-01 200'd S28L9S9L0b:01 :woeu Lb:OT 1002-82-f1ON IWS Renewal Maintenance Agreement I1/19/2001 described in Section 2.5, and(iii) Extra Services as is described in Section 2.6, all in accordance with and subject to the terms and conditions of this Agreement. 2.2 Obligation for Maintenance Support. AGENCY acknowledges that IWS will not be required to provide maintenance support during the time frames noted in Section 1 of the Agreement unless and until AGENCY has provided IWS with an executed copy of the Agreement. 2.3 Connectivity. Electronic communication connectivity between IWS and the System shall be via either a point-to-point Internet connection or via a dial-back modem (whereby 1WS will dial AGENCY's server and the server will dial back to IWS). 2.4 Preventive Maintenance. Preventive maintenance ("Preventive Maintenance") shall only be required for Supported Items and shall consist of all maintenance service, other than Excluded Services as defined in paragraph 2.7, performed by 1WS representatives, independent of any System failure, for the purpose of maintaining the System in good working order, including, without limitation, the maintenance services described in subsections 2.4.1 and 2.4.2 below. Any additional Preventive Maintenance beyond that described in subsections 2.4.1 and 2.4.2 shall be at the sole discretion of IWS. Preventive Maintenance performed on-site at AGENCY locations shall be performed by 1WS representatives during normal working days, Monday — Friday except holidays, between the hours of 8:00 a.m. and 5:00 p.m. or as otherwise arranged. IWS will provide AGENCY with reasonable prior notice and AGENCY will assure that IWS has access to the equipment. Preventive Maintenance performed off-site from AGENCY locations may be performed by IWS representatives at any time. 2.4.1 Preventive Software Maintenance. (a) Subject to the availability of access through IWS approved System connectivity, IWS representatives will perform Preventive Software Maintenance for a) System servers purchased directly from IWS, no less frequently than monthly; b) Capture Stations where the client hardware, on which such IWS software resides, has been purchased directly from IWS, no less frequently than quarterly; and c) Investigative Stations where client hardware, on which such 1WS software resides, no less frequently than annually. (b) If the System server(s) and/or Capture Station(s) and/or Investigative Station(s) hardware, on which the IWS software resides, has/have not been purchased directly from IWS, IWS will not be required to provide Preventive Software Maintenance. 2.4.2 Preventive Hardware Maintenance. 1WS representatives will perform an annual quality control check of the Supported Items to ensure that the System is Page 2 vcr 04-03-01 DGa'd S28L9S9L017:01 :Wald Lt':01 1002-82-00N IWS Renewal Maintenance Agreement. 1 I/19/200 I performing at the prescribed standards for System functionality. Such check shall include a cleaning of the Supported Items, Supported Items hardware alignment, and general system checks to assess image quality and System performance. 2.5 Remedial Maintenance. Remedial maintenance ("Remedial Maintenance") shall mean all maintenance, other than Excluded Services, reasonably required as a result of, and for the purpose of correcting, a System Failure. For purposes of this Agreement, "System Failure" shall mean any malfunction in the Supported items that prevents or materially interferes with, any or all aspects of the System's intended functions. 1WS will provide Remedial Maintenance through its Customer Support Department based on three technical levels of support, iWS will make available to AGENCY a Help Desk(Tier T support), which will be continuously accessible by telephone, e-mail or the worldwide web 24 hours per day, 7 days per week (including holidays). If so required to solve Remedial Maintenance issues, 1WS, in its sole discretion, may also utilize specialized engineers and technicians (Tier II support) who are adept at solving more complex problems, as well as selected members of 1WS's Research and Development Department (Tier TIT support). Following the identification of a System Failure by AGENCY, and AGENCY's completion of any diagnostic procedures recommended by IWS, AGENCY shall provide notification thereof to 1WS. AGENCY agrees to actively cooperate with 1WS in all further diagnostic testing, as determined and requested by 1WS. in the event of any software failure, IWS shall make a good faith effort to have an appropriate software support person respond to the AGENCY within the time frames described in the IWS Response Schedule (attached hereto as Exhibit B). Such response will be to provide notification with an update on possible causes and/or solutions. In the event of the failure of any Critical Hardware Items(as defined below),IWS shall make a good faith effort to cause an authorized representative of iWS to arrive at the location where the System is installed no later than the time frames described in the IWS Response Schedule(Exhibit B). 2.5.1 Critical Hardware Items: Critical hardware items ("Critical Hardware Items") are hardware items purchased from 1WS, that are specifically associated with the Server, the supplied interfaces, or the Capture Stations, and that arc required for the AGENCY to perform its day-to-day duties associated with the capture and storage of mug photo images. As a point of clarification, printers are not among the Critical Hardware items. 2.5.2 Non-critical Items: Non-critical items ("Non-critical items") are hardware items purchased from IWS that are not mentioned in Section 2.5.1. Non-critical items shall be repaired during IWS's normal work hours. Printers are not among Non- critical items and are only supported by 1WS during the initial 45 days after their Pagc 3 vcr 04-03-01 b00'd S28L9S9L0b:01 :NOad Lb:0i 1002-82-00N IWS Renewal Maintenance Agreement 1 1/19/2001 installation. All critical hardware will be repaired next TWS Business day due to shipping of critical items and vendor may be called to repair item next 1WS business day if critical hardware. 2.5.3 Software Only Installations: If the System server(s) and/or Capture Station(s) and/or Investigative Station(s) hardware, on which the IWS software resides, has/have not been purchased directly from IWS, 1WS will not be obligated to provide Remedial Maintenance via remote access software. If, however, AGENCY has installed IWS approved remote access software, IWS, at its sole discretion,may provide Remedial Maintenance via remote access software. 2.6 Extra Services. Extra services ("Extra Services") shall consist of any maintenance services with respect to the System, other than Preventive Maintenance and Remedial Maintenance, but including without limitation, Excluded Services (as defined below). IWS shall be under no obligation to perform any Extra Service but may undertake to make a good faith effort to render such services to the extent that it is capable of doing so without substantially interfering with its other obligations under this Agreement or its obligations to other customers. Extra Services will be charged to the AGENCY on a time and materials basis as determined by IWS and AGENCY will pay such charges as invoiced by IWS. If so requested by AGENCY, IWS shall provide a written estimate of the extra charges likely to be incurred as a result of the performance of such Extra Services, to the extent such charges can be reasonably ascertained in advance. 2.7 Excluded Services. For the purpose of this Agreement, "Excluded Services" are those services that iWS is not obligated to perform for the Maintenance Fee, but may perform for extra compensation as set forth in Section 2.6. Excluded Services shall be defined as: (a) the replacement of any hardware as is required by age, duty cycle, obsolescence as determined by the manufacturer (okay) or excessive use; (b) the replacement of any hardware or the support of third-party software where service or support for such hardware or such third-party software is no longer provided by the original equipment manufacturer of such hardware or the original vendor of such third-party software; (c) the update or upgrade of third-party software, including operating system(s); (d) the replacement of supplies or expendable items (e.g. ink rollers, ribbon cartridges, toner cartridges, fusers, paper, .film, diskettes, tape cassettes, lamps, etc.); (e) any maintenance services to be performed on any software, hardware or other item not furnished by 1WS to AGENCY or any other work external to the System by anyone other than IWS; or(f) any maintenance services necessary or appropriate in order to correct any System Failure, or potential failure, attributable in whole or in part to any of the following factors, or any combination thereof 2.7.I Failure by AGENCY to provide or maintain a suitable installation environment as the System site in accordance with the operations documentation, and any other reasonable requirements thereafter communicated in writing by IWS to Page 4 ver 04-03-01 SOO'd S28L9S9L1 t :O1 :1408A Lt : T 1002-82-CON IWS Renewal Maintenance Agr anent 11/19/2001 AGENCY, including without limitation, any electrical power, air conditioning, or humidity control failure or changes to the environment of the System site, 2.7.2 Use of supplies or materials not approved by IWS, or by the equipment manufacturer, 2.7.3 Use or attempted use of the System or any component thereof for any purpose other than that for which it was acquired, 2.7.4 Alterations to the System hardware or software (including operating system(s), operating system service packs, drives, or applications) other than alterations installed by, provided by, or approved in writing by IWS, 2.7,5 System failure caused by alterations to the System performed by non-IWS representatives using the NT server administrator password, 2.7.6 Connection of the System by mechanical or electrical means to any other machine, equipment or device, other than those installed by or approved in writing by IWS, 2.7.7 Any changes in the AGENCY network or in IP addresses that relate to or affect the System, other than those approved in writing by IWS, 2.7.8 The removal, transportation or relocation of the System by any person other than IWS's personnel, 2.7.9 Neglect or misuse of the System by AGENCY or any third party, 2.7.10 Any other intentional or negligent damage to the System by the AGENCY or third party, 2.7.1.1 Any other failure by AGENCY to comply with its obligations under this Agreement or the Purchase and License Agreement, or 2.7.12 Any damage caused by other than normal operating conditions or events, including without limitation, accident, transportation, neglect, misuse, lightning, failure or fluctuation of electrical power, temperature or humidity changes, telephone equipment or line failure, failure of foreign interconnect equipment and acts of God. 2.8 Replacement or Repair. In performing Preventive Maintenance and Remedial Maintenance, IWS shall be entitled to exercise reasonable discretion in determining whether to replace or repair any malfunctioning item; provided, however,that any such replacement shall be a functional equivalent. Page 5 ver 04-03-01 900'd S28L9S9L017:01 :4Od.-J 8b:0T i002-82-nON IWS Renewal Maintenance Agreement I I/19/200i 2.9 Diagnostic Software. In order to facilitate rapid analysis of a System Failure involving software, IWS will provide trained staff, at its company location, capable of handling software failures in an expedient manner. In addition they will have diagnostic software for the purpose of identifying the cause of System Failures, temporarily patching around the problem if necessary or temporarily disabling the use of the malfunctioning software module so that the System can be returned to use for other activities with minimal degradation in operation. 2.10 Off-Site Maintenance: Any maintenance services required to be performed under this Agreement which need not or cannot, in 1WS's reasonable judgment, be performed effectively at or near the System site shall be performed at such other location(s) as IWS may determine, at no extra cost to Customer. 2.11 Log Entries: AGENCY, after its request, shall be provided with 1WS records regarding System failures, and any other malfunctions, problems, or defects in the System, in accordance with a format to be provided by IWS. 2.12 Network Connections: Although IWS will provide some guidance and direction, 1WS is not responsible for resolving problems relating to networks. 2.13 Data Back-ups: It is the AGENCY's responsibility to keep adequate System data back-ups. IWS is not responsible for loss of data. 2.14 Proprietary Information: AGENCY acknowledges that the database structure contains !WS trade secrets and intellectual property rights, which are the property of 1WS. AGENCY agrees that the database structure may not be copied, modified or reproduced in whole or in part, for any purpose whatsoever. The code is in an Escrow account ,subject to an Escrow Agreement, and will be supplied to the AGENCY pursuant to the terms of the Escrow Agreement . The database structure may not be reverse engineered, de-compiled, dissembled, or otherwise reverse engineered in whole or in part. 3. CUSTOMER RESPONSIBILITIES 3.1 General: AGENCY agrees to provide IWS with the contact information for their System. Administrator(s), and their backup(s), who generally will be available during the AGENCY's normal Monday through Friday daytime business hours. AGENCY acknowledges that it is important for the AGENCY's System Administrator to take an active role in the management of the Crime Capture System and that image quality and consistency are very important in general and especially important with regard to any centralized repositories. 3.2 Periodic Routines: AGENCY agrees that it is the responsibility of the AGENCY's System Administrator to perform the following tasks. 3.2.1 Periodically inspect images for quality. Pagc 6 ver04-03-01 L00'd S28L9S9L0b:01 :WONJ 817:OL 1002-82-nON IWS Renewal Maintenance Agreement 1 1/19/2001 3.2.2 Use manufacturer approved consumable supplies. 3.2.3 Manage System data back-ups. 3.2.4 Maintain studio lighting with prescribed lamps. 3.2.5 Label stations with machine name and trouble reporting instructions. 3.2.6 Manage supporting network. 3.2.7 Manage users, groups, passwords, and access rights. 3.2.8 Train users as necessary. 3.2.9 Ensure problems are reported in a timely fashion to the iWS Help Desk. 3.2.10 Utilize most recent iWS provided software when required by iWS. 3.2.11 Provide reliable and continuous connectivity for remote entry. 3.2.12 Provide suitable environment for stations and especially for the servers. 3.2.13 Provide stable and adequate power. 3.2.14 Maintain effective communications with IWS. 4. MISCELLANEOUS TERMS 4,1 Confidential Information, Publicity: iWS will not publish or otherwise disclose any information or data obtained from AGENCY in any manner where the identity of any particular person or establishment can be identified, except with the consent of the AGENCY in compliance with the Florida Public Records Act.. until such consent is obtained from AGENCY, iWS will keep such information confidential using the same care and discretion used with similar information that IWS designates as confidential. Publicity giving reference to the sale, installation, and/or existence of the System, whether in the form of a press release, verbal announcement or filing of governmental form (as may be required by The Securities and Exchange Commission or other governmental entity under public disclosure laws, regulations or otherwise) may be given by IWS without the prior approval of AGENCY. 4.2 Limitation of Liability: 1WS's maximum liability to the AGENCY arising for any reason relating to 1WS's performance of the this Agreement, or any Page 7 vcr 04-03-01 800'd S28L9S9L017:Ol :140eU 817:0 t 1002-82-r10N • IWS Renewal Maintenance Agreement II/19/200I amendment thereto, shall be limited to the amount of fees paid to IWS for its performance under this Agreement for the specific year that is related to the event which gave rise to the liability. 4.3 Hold harmless: JWS will indemnify, defend and hold harmless the AGENCY, its officers, agents, employees or representatives from all liability for any loss, damage, or injury to persons or property arising from or related to the performance of this Agreement, including without limitation all consequential damages and attorney's fees, resulting from IWS's gross negligence or its wrongful or reckless performance hereunder. The Agency to the extent allowable by law, will indemnify, defend and hold harmless IWS, its officers, agents, employees or representatives from all liability for any loss, damage, or injury to persons or property arising from or related to the performance of this Agreement, resulting from AGENCY's gross negligence or its wrongful or reckless performance hereunder. 4.4 Independent Contractor: This Agreement is for the professional services of IWS and its representatives and is non-assignable by 'WS without the prior written consent of the AGENCY. In performing these professional services, IWS is an independent Contractor and is not acting as an agent or employee of the AGENCY. 4.5 Termination: Prior to the expiration of this Agreement, this Agreement may be terminated for the convenience of both parties by mutual consent. Either party may terminate this Agreement upon a breach by the other party which is not cured in a timely manner as follows: In the event of any material breach of this Agreement by either party, the aggrieved party must give written notice thereof, including a reasonably detailed statement of the nature of such breach, to the breaching party. The breaching party has thirty (30) days to cure such breach. In the case of a breach that cannot reasonably be cured within 30 days, the breaching party will provide a written estimate of the time needed to cure such breach, will commence to cure such breach within thirty (30) days of notice from the aggrieved party, and will diligently continue to cure such breach to completion. If the breaching party fails to cure, to commence cure, or diligently prosecute such cure to completion, the aggrieved party shall be entitled to suspend its performance under this Agreement for as long as the breach remains uncorrected, and avail itself the remedies provided by this Agreement. Failure of AGENCY to pay, when due, all fees payable, including annual or Extra Services fees, will be cause for IWS to give written notice within 30 days to suspend the performance of any of IWS's duties as described herein. 4.6 Disputes; Binding Mediation (a) Disputes: In the event that any dispute or controversy arises between IWS and AGENCY, IWS and AGENCY agree to first attempt to resolve the matter through discussions directly between themselves. (b) Binding Mediation: In the event IWS and AGENCY arc unable to resolve Page 8 ver 04-03-0 l 600.d S2819S910b:01 :Waid 6b:al 1002-82-n0N IWS Renewal Maintenance Agreement 11/19/2001 any matter through discussions, they agree to resolve the matter through binding mediation. IWS and AGENCY will agree upon the location and rules for the mediation. 4.7 Notices: All notices required under this agreement shall be made in writing and addressed or delivered as follows: TO AGENCY- TO IWS- IMAGEWARE SYSTEMS, INC. JEFF HOTZE, CONTROLLER 10883 THORNMINT RD SAN DIEGO, CA 92127 Either party may,by written notice to the other, change its own mailing address. Any notice or other written communication, if delivered personally to such party or if delivered by registered U.S. Mail or by prepaid overnight courier, shall be deemed to have been received on the day of its delivery, and if delivered by any other means, shall be deemed to have been received upon the receiving party's acknowledgement of such receipt. 4.8 Governing Law and Venue: The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, will be construed pursuant to and in accordance with the laws of the State of Florida. Venue shall be proper in the state and federal courts in Orange County, Florida. 4.9 Scverability of Agreement: If any term of this Agreement is held by a court of competent jurisdiction to be void or unenforceable, the remainder of the terms of the Agreement will remain in full force and effect and will not be affected. 4.10 Cumulative Remedies: The exercise of or failure to exercise legal rights and remedies by either party in the event of any default or breach hereunder will not constitute a waiver or forfeiture of any other rights and remedies, and will be without prejudice to the enforcement of any right or remedy available by law or authorized by this Agreement. 4.11 Compliance with Laws: Each party to this Agreement will comply with all applicable state of Florida and Federal laws. Pagc 9 vet 04-03-01 0t0'd S28L9S9L017:01 :W0dd 612:0T 1002-82-nON IWS Renrwal Maintenance Agreement I 1/19/2001 4.12 Non Discrimination: IWS will comply with all applicable federal, state and local laws, rules and regulations in regard to non-discrimination in employment because of race, color, ancestry, national origin, religion, sex, marital status, age, medical condition, disability or other prohibited basis. 4.13 Entire Agreement, Modification: This Agreement, including the exhibit(s), constitutes the entire agreement between the parties and supersedes all previous agreements or representation, oral or written, relating to this Agreement. This Agreement may only be modified or amended by a written modification signed by each party. Both parties acknowledge they have read this Agreement, understand its terms and conditions, and agree to be bound by it. 4.14 Public Entity Crimes Act — TWS acknowledges the following; " A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in 2.287.017, Florida Statutes for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. Agreed to: Agreed to: IMAGEWARE SYSTEMS,INC. CITY OF OCOCEE By: By: Name: Name: Title: Title: Date: Date: Page 10 ver 04-03-0 I 1:I0'd S28L9S9L0b:01 :WOad 617:0T t002-82-n0N • IWS Renewal Maintenance Agreement I1/19/200I Page 11 ver04-03-0I 2i0'd SZ8L9S9L0b:01 :14021d OS:OT 1002-82-f10N • I WS Ranewnl Maintenance Agreement II/I9/2001 EXHIBIT A QUOTE WITH SCHEDULE OF SUPPORTED ITEMS & MAINTENANCE FEES See attached schedule on back page of contract. Pagc 12 ver 04-03-01 PTO d SE8L9S9L00:01 :woad 0S 0T T002-82-(lON IWS Renewal Maintenance Agreement 1 1/19/2001 Page 13 ver04-03-0I VEO'd S£8L9S9L017:O1 :WO2id OS:Bt tOO2-82-(ON IWS Rrnrwal Maintenance Agreement EXHIBIT 6 IWS RESPONSE SCHEDULE Software—sixty(60) minute call back, all updates provided free of charge. Ticr II on eight (8) hour response. Hardware — next IWS business day on all Critical Hardware Items. Page 14 ver 04-03-01 S10'd S28L9S9L017:01 0S:0t 1002-82-(ON